Last week, the U.S. Supreme Court denied certiorari in Apache Stronghold v. United States, about which we’ve written at length. But the Court also denied review in another important First Amendment case on the same day: L.M. v. Town of Middleborough, which concerns the limits of student self-expression in schools.
 
The case involves a student at Nichols Middle School in Middleborough, Massachusetts, who was prevented by faculty from attending class when he wore a T-shirt that read, “There Are Only Two Genders.” According to the facts of the case, Nichols Middle School actively encouraged student expression when it came to endorsing the view that there are many genders, but would not tolerate the opposing view. 
 
The student, known as L.M., brought suit, alleging First Amendment violations based in part on viewpoint discrimination. The critical precedent for student expression in schools is Tinker v. Des Moines, a Vietnam-era case that firmly established the principle that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
 
Tinker involved students wearing black armbands as a form of silent protest against the Vietnam war. Whatever your beliefs about the gender identity debate, it is similarly an issue of intense discussion throughout the media and larger public. As such, similar legal reasoning – that prohibited student expression must “materially and substantially interfere” with the functioning of the school to warrant censorship – should apply.
 
Using the Tinker test, however, both the federal district court and the First Circuit Court of Appeals denied relief. The lower courts followed the judgment of school administrators that this passive speech could trigger and cause harm to other, vulnerable students, demonstrating the inherent subjectivity of this area of law. Justice Samuel Alito called this standard “vague” and sure to be “permissive” of censorship.
 
Indeed, in an impassioned dissent from the Supreme Court’s certiorari denial, Justice Alito (joined by Justice Clarence Thomas) took heated issue with the lower courts’ findings, particularly as they relate to the First Circuit’s dismissal of LM’s viewpoint discrimination claims. He wrote:
 
“The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle ... To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools.
 
“The First Circuit also watered down the test adopted in Tinker for determining whether a school’s restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a ‘demanding standard.’ We held that a school can restrict speech when it has ‘evidence’ that such restrictions are ‘necessary’ to ‘avoid material and substantial interference with schoolwork or discipline.’ Thus, absent a ‘specific showing’ of such a disruption – like ‘threats or acts of violence on school premises’ – this justification for suppressing student speech does not apply. Under this standard, NMS (Nichols Middle School) had no right to censor L.M.” [Citations omitted.]
 
We agree with Justice Alito that the Court should have granted review in this case – if for no other reason than to clarify the Tinker ruling, which has been subject to wildly divergent interpretations over the years.
 
The First Circuit’s rewriting of the Tinker test leaves a lot up to speculative faculty opinions. As Justice Alito writes, it “demands that a federal court abdicate its responsibility to safeguard students’ First Amendment rights and instead defer to school officials’ assessment of the meaning and effect of speech.”
 
In an increasingly censorious world, that seems an insufficient safeguard.

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.

​The U.S. Supreme Court today denied the Western Apache’s last appeal to protect their sacred lands from being transformed into a copper mine. The way is now clear to transfer this parcel of the Tonto National Forest, Oak Flat, from the federal government to a multinational mining company, Resolution Copper.

Justice Neil Gorsuch was joined in an impassioned dissent by Justice Clarence Thomas. It is masterfully reasoned, leaving one to wonder not just about the blatant injustice of this land deal for the Apache, but the implications for the religious freedom of other Americans in the future.

The Background

Gorsuch goes into great detail explaining the history of the Apaches’ connection to Oak Flat and its central place in their religion. He quotes the cert petition explaining the importance of Oak Flat:

“Western Apaches believe that the site is the dwelling place of the Ga’an – ‘saints’ or ‘holy spirits’ that lie at ‘the very foundation of [their] religion … ‘They come from the ground,’ and they serve as ‘messengers between Usen, the Creator, and [Apaches] in the physical world.’

“Faithful to these beliefs, tribal members have worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies that cannot take place anywhere else.”

Justice Gorsuch goes into detail about Apache ceremonies, including three-day coming-of-age-rituals for Apache girls, in which they gather plants while covered in white clay. This mirrors the Apache creation story in which a white-painted woman came out of the earth. Gorsuch quotes the plaintiff, the Apache Stronghold, which wrote that the white clay is meant to “imprint” the spirit of Oak Flat in the young women.

Now, Justice Gorsuch writes, tribal members believe the destruction of Oak Flat “will close off the portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”

The Law

Gorsuch details obligations in an 1852 treaty between the Apaches and the government to recognize the sacred status of Oak Flat. Those obligations were overturned when legislators attached an 11th hour rider to the 2014 National Defense Authorization Act, hiding it in a bill that was 698 pages long.

Justice Gorsuch proceeds to dissect and expose the illogical Ninth Circuit Court of Appeals decision that will now allow the multinational mining company to destroy Oak Flat. Today’s motion puts at risk the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993 to protect the free exercise of religion from “substantial burdens” by the federal government.

The Ninth Circuit got around RFRA by turning to a precedent, Lyng v. Northwest Indian Cemetery Protective Assn. (1988) that involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. Gorsuch writes:

“On the Ninth Circuit’s telling, Lyng set forth a special test for analyzing whether the government’s ‘disposition’ of its real property runs afoul of the Free Exercise Clause … That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no ‘tendency to coerce individuals into acting contrary to their religious beliefs’ and does not ‘discriminate against or among religious adherents.’”

The Result

Justice Gorsuch notes that courts have had no qualms upholding other laws restricting the government’s power to dispose of its real property. The Endangered Species Act, for example, required the halting of a federal dam to protect the “snail darter.” But no such protections can be afforded to the religion of the Apaches.

The way is now clear for Resolution Copper to blast tunnels that will result in a crater 1,000 feet deep and nearly two miles wide. While courts have acknowledged that this will permanently destroy the Apaches’ historical place of worship, preventing them from ever worshipping there, it does not – according the Ninth Circuit opinion now upheld –amount to a “substantial burden” of the First Amendment religious freedom rights of the Apache. Justice Gorsuch writes:

“Just imagine if the government sought to demolish a historic cathedral on so questionable a claim of legal reasoning. I have no doubt we would find the case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”

He ended his dissent with a quote from the Court’s 2018 opinion in Masterpiece Cakeshop:

“Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.”

In his conclusion, Justice Gorsuch writes:
​
“While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake – one with consequences that threaten to reverberate for generations."

​Zooey Zephyr and Laurel Libby could not be more different. Zephyr is a transwoman and activist for trans rights. Libby is an acerbic critic of allowing transgender athletes to compete in girls’ sports.
 
Zephyr is a Democratic state representative in bright-red Montana. Libby is a Republican state representative in bright-blue Maine. But they do have one significant thing in common: both were forcibly silenced by their respective legislatures.
 
In 2023, during a debate on restricting gender-affirming care for minors, Zephyr claimed that such a move would exacerbate the high rate of suicide among transgender teens. When she claimed that those who voted for the bill would have “blood on your hands,” Zephyr was expelled, banned from the House chamber for the remainder of the legislative year. This made her absent from the discussions, deliberations, and horse-trading that occurs as Montana passed a housing bill and the state budget.
 
“There will be 11,000 Montanans whose representative is missing,” Zephyr said. She took legal action to restore her right to appear in the chamber, but her legal move became moot when the legislative year ended.
 
Why was Laurel Libby silenced? She put up a social media post showing a transgender high school athlete who had come in fifth place in pole vaulting last year in a boys’ event, only to win first place a year later in the girls’ state championship. When she refused a demand by her Democratic colleagues to remove the post, Libby was censured and denied the right to vote.
 
You might love, loathe, or be indifferent to either legislator and her cause. But both were commenting on an issue that is inherently political and can only be settled in our society by political means. With such an emotional issue, this is sure to entail some hot words. That’s democracy.
 
What’s not democracy is that in both Montana and Maine – where one party controls the governorship, the state House, and Senate – a member of the opposing party, and therefore her constituents, were silenced.
 
This was so egregious that last week, the U.S. Supreme Court used its emergency docket to issue a stay in the expulsion of Rep. Libby from the Maine chamber. Justice Ketanji Brown Jackson protested in a dissent that the Court had come to rely too much on the “short fuse” of the emergency docket. When dealing with the rights of legislatures, the Court has reason to move carefully. But if the Court had not acted, how many more months or years would Libby be forbidden from representing her constituents?
 
And without a temporary restoration from the Court, if Libby were to ultimately win her lawsuit, how would she then be compensated for lost votes and a ruined term in office?
 
Legislatures do have a right – and sometimes good reason – to punish and even expel members for extreme behavior. But the same government that cannot silence one individual should not be allowed to silence a legislator and the thousands she represents.
 
The Court made the right call in favor of the First Amendment.

​Sen. Tim Scott’s latest legislative effort – the High-Quality Charter Schools Act – should be welcomed by anyone who values liberty, educational opportunity, and the full expression of our First Amendment rights. The South Carolina Republican is introducing a 75 percent federal tax credit for charitable donations to nonprofit charter school organizations with proven excellence. The aim is clear – to break down the financial barriers that prevent communities from opening the schools their children need.
 
“No matter their background, race or zip-code, every child deserves access to a good school,” Sen. Scott said in his introduction of this bill. “Millions of families – including thousands across South Carolina – choose charter schools for the high-quality education they provide.” He said that this bill will strengthen the best educational opportunities for families that need it the most.
 
For Protect The 1st, this bill isn’t just sound policy. It is a way to fulfill the promise of the First Amendment. Parents have a right, grounded in part in that Amendment, to guide their children’s education in ways that reflect their values and beliefs across generations. School choice empowers families to act on that right, whether through religious schools, charter schools, or other educational models.
 
The First Amendment protects both free speech and religious liberty. School choice legislation like this honors both. It enables families to seek out educational environments – secular or religious – that align with their convictions, without government interference.
 
We’ve seen this principle in action with the Educational Choice for Children Act. That measure, now part of the reconciliation package before the Senate, would offer similar tax credits for donations to organizations that fund scholarships for private and religious schools. It’s about using private donations to give families more options and students better chances. In Sen. Scott’s bill and the ECCA, money comes from voluntary donations, not state tax dollars.
 
Moreover, contrary to arguments by critics, there is abundant evidence showing that competition from school choice actually improves public schools. Out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems. “In terms of social-scientific validity, that’s a slam dunk,” writes Alexander William Salter, economist at Texas Tech University. When families have options, everyone wins.
 
Sen. Scott’s focus on charter schools adds another dimension, supporting schools that often serve low-income and minority students. It offers alternatives where the public system has failed. Sen. Scott’s bill respects American pluralism and helps close the gap between educational ideals and the lived reality of American families. Perhaps most important, it gives parents greater control over the destiny of their children. It does this by supporting institutions – charter, religious, and independent – that reflect America’s diversity while enabling the fullest exercise of the First Amendment.

​Protect The 1st is disappointed by the U.S. Supreme Court’s 4-4 deadlock that blocks public funding of a religious charter school in Oklahoma.
 
The ruling, composed of only two sentences, leaves in place an Oklahoma Supreme Court decision to deny St. Isidore of Seville Catholic Virtual School its prospective status as the nation’s first publicly funded religious charter school.
 
This dispute started in 2023, when Oklahoma’s charter school board okayed an application by the archdiocese of Oklahoma City and the diocese of Tulsa to create St. Isidore. The school’s plan centered around online learning to address the demand for quality instruction across the Sooner State’s charter school network.
 
Soon after, Oklahoma attorney general Gentner Drummond went to the Oklahoma Supreme Court, asking it to invalidate the charter board’s contract with the school. In a 7-1 opinion, the court ruled against allowing public charter funds to support St. Isidore, holding the funding of online religious schools by the state to be unconstitutional.

In her lone dissent, Justice Dana Kuehn made the compelling point that taking the state’s money would make St. Isidore a publicly funded school, but not a “public school.” Judge Kuehn wrote:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”
 
Indeed, as long as a religious school meets the state’s teaching requirements for math, science, English and other core subjects, it should be eligible for any public benefits made available to any other private school. Oklahoma’s rejection of this common sense, guiding principle is based on the antiquated Blaine Amendments – anti-Catholic laws passed largely in the 19th century to prevent Catholic schools from receiving public funding. These laws, which exist in 37 states, remain in force as living relics of anti-Catholic bigotry from a bygone era.
 
Moreover, the Supreme Court of the United States has effectively ruled in three recent cases that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
 
In Trinity Lutheran Church v. Comer, the Court ruled that a Missouri policy denying religious organizations access to playground resurfacing grants violated the Free Exercise Clause. In Espinoza v. Montana Dept. of Revenue, the Court held that a Montana state constitutional provision barring aid to any school “controlled in whole or in part by any church, sect, or denomination” was similarly unconstitutional. And in Carson v. Makin, the Court found that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments also failed to pass constitutional muster.
 
Attorney General Drummond, the de facto victor in this case, seems to believe that contracting with the state makes a charter school a public school, a position with far-reaching implications for future state contractors of any religious affiliation. We heartily agree with Justice Kuehn – and so apparently does at least half of the Supreme Court (Justice Amy Coney Barrett recused herself due to a likely conflict emanating from her former position at Notre Dame).
 
As the Alliance Defending Freedom – representing the Oklahoma Statewide Charter School Board – said in its certiorari petition:
 
“The Oklahoma Supreme Court’s conclusion that Trinity Lutheran, Espinoza, and Carson ‘do not apply to the governmental action in this case’ fails along with the state-action premise on which it rests … St. Isidore is not a state actor, so the lower court’s talismanic invocation of the phrase ‘governmental action’ does not distinguish this Court’s cases.”
 
But there is good news amid the bad news – the recusal of Justice Amy Coney Barrett almost certainly tilted the balance against St. Isidore. This augurs well for future cases on the equal treatment of religious based schools, as the Court has already done in Carson v. Makin.
 
States should take this opportunity to repeal prejudiced Blaine Amendments, and maybe find another, future opportunity for action that doesn’t trigger a recusal. 

The Religious Freedom Restoration Act (RFRA), passed in 1993 with overwhelming bipartisan support, was crafted to provide a strong shield for religious liberty. It requires that any government action that substantially burdens religious exercise must be the least restrictive means of advancing a compelling government interest. This principle was not meant to expire or be casually overridden.
 
In a recent Supreme Court filing, the Biden Administration asserted that RFRA can be silently displaced by later statutes, even if Congress says nothing about overriding religious liberty. In a brief footnote, the government argued that if a later statute mandates action – even if it burdens religious exercise – it must override RFRA by default.
 
Perhaps that was to be expected from the Biden Administration, which did not make the freedom of religious exercise a priority. More troubling is that the current administration’s Solicitor General, Dean John Sauer, echoed this view in a letter to the Supreme Court in Apache Stronghold v. United States. Sauer reaffirmed the notion that the land-exchange statute at the heart of the case supersedes RFRA, simply because it came later and is “more specific.”
 
This theory invites the piecemeal erosion of civil liberties. If accepted, it would allow Congress – or perhaps even regulatory agencies – to nullify fundamental rights like religious freedom without ever saying so explicitly. All it takes is a newer law or rule that conflicts with RFRA, and the protections vanish.
 
That logic assumes Congress fully weighs the consequences for religious liberty every time it enacts a new law. It presumes that federal agencies act with constitutional clarity. In truth, lawmakers are not always so meticulous, and regulators have been known to ride roughshod over constitutional protections.
 
This framework has already emboldened efforts to undercut conscience protections in healthcare. Under this view, statutes that promote access to abortion or gender-transition procedures can override RFRA by mere implication – forcing doctors and hospitals to act against their beliefs, without any serious effort to reconcile those conflicts.
 
It is disappointing, to say the least, that a Trump Administration lawyer would continue this Biden-era legacy. Conservatives, especially those with commitments to religious liberty, should reject any legal doctrine that grants Congress or regulators an easy path to nullify core civil rights.
 
RFRA was designed to stand as a bulwark, not a speed bump. Allowing it to be bypassed by silence or implication is not just bad legal reasoning – it undermines a law that reinforces the First Amendment’s guarantee of the free exercise of religion. The Supreme Court declared in 2020 that “RFRA operates as a kind of super-statute, displacing the normal operations of other federal laws.”
 
The Supreme Court should now again affirm that RFRA remains fully in force.

​Under the leadership of Chairman Jason Smith (R-Mo.), the House Ways and Means Committee approved the Educational Choice for Children Act (ECCA) on Wednesday as part of the tax package in President Trump’s “big, beautiful” reconciliation bill. This measure provides $20 billion in tax credits over the next four years to non-profit Scholarship Granting Organizations to pay private school tuition and educational materials for children throughout the United States.
 
“This is hopeful news for millions of American students and their parents,” said Bob Goodlatte, former Congressman and Chairman of the House Judiciary Committee, and Senior Policy Advisor to Protect The 1st. “Giving parents the ability to choose the best school for their children is a powerful expression of the First Amendment across the generations. Whether parents choose a private school that specializes in the sciences and technology, or the arts, or a religious school, they are free to make the best choice for their children.
 
“Our gratitude goes to Chairman Smith and all of his colleagues who stood behind the ECCA,” Goodlatte said. “We are also grateful to the followers of Protect The 1st who answered our call to let House Members know how important this legislation is to the families and children of America.
 
“We urge more Members to get behind the passage of this bill by the full House and the Senate, and its delivery to the president’s desk.”

​A federal court has blocked the government from transferring Oak Flat to a foreign-owned mining company, preserving the sacred Apache site while the U.S. Supreme Court considers whether to hear the case. The ruling is a powerful rebuke of the federal rush to transfer the land, which Western Apaches consider a portal to the Creator and the center of their religious life.
 
Judge Steven P. Logan concluded that “there is no close question in this matter,” finding it “abundantly clear that the balance of equities ‘tips sharply’ in Plaintiff’s favor.” He emphasized that the Apaches face “a likelihood of irreparable harm should the transfer proceed” and that the case presents “serious questions on the merits that warrant the Supreme Court’s careful scrutiny.”
 
Oak Flat, which sits within Arizona’s Tonto National Forest, has been central to Apache religion for centuries. For 70 years, it has been protected from mining, until a 2014 defense bill provision set the stage for its transfer to Resolution Copper, a subsidiary of a multinational firm partially owned by a Chinese corporation.
 
If the mine goes forward, the Apache will forever lose their ability to perform ceremonies tied to the land. Resolution Copper plans to turn Oak Flat into a two-mile-wide, 1,100-foot-deep crater. That devastation would be irreversible, a loss equal in scale to dynamiting the Vatican or using the stones of the Wailing Wall as a quarry.
 
Dr. Wendsler Nosie Sr. of Apache Stronghold responded bluntly: “The federal government and Resolution Copper have put Oak Flat on death row – they are racing to destroy our spiritual lifeblood and erase our religious traditions forever.”
 
The injunction prohibits the federal government from publishing its environmental report or finalizing the land transfer until the Supreme Court either denies review or issues a final ruling. That decision halts Resolution Copper’s plans to turn Oak Flat into a massive copper mine.
 
The court rejected the argument that Apache rituals could simply be relocated, stating it was “disinclined to minimize the importance of Oak Flat to the Apache’s belief system.” As previously noted by the court in 2021, the mine would “close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”
 
Judge Logan also dismissed the mining company’s claims about financial harm, noting they had invested in the land years before Congress authorized the transfer and did so “voluntarily.” In contrast, the Apaches risk losing access not just to land, but to their religious future: “They cannot choose to practice their religion at all once their sacred religious site is completely ‘obliterated,’” as one dissenting judge previously wrote.
 
Oak Flat is more than a legal fight. It’s a test of whether the U.S. government will honor its promise of religious liberty when it matters most – not just in speech, but in action. The Apache’s sacred ground deserves the same protection any church, synagogue, or mosque would be afforded. If the Apache lose, Americans of all faiths will lose as well.

​The U.S. Department of Justice has launched a civil rights investigation into Washington State Senate Bill 5375, a new law that forces Catholic priests to break the seal of confession or face criminal consequences. Signed into law on May 2 by Gov. Bob Ferguson (D-WA), the bill mandates that clergy report suspected child abuse, even if the information is obtained during a sacramental confession. The investigation focuses on whether the law violates the First Amendment’s guarantee of religious freedom by criminalizing a practice that has been protected under both religious doctrine and U.S. legal tradition for more than two centuries.
 
SB 5375 adds clergy to the list of mandatory reporters of child abuse but does so with one key difference: it refuses to honor the long-standing legal and religious protection for confessional secrecy. Unlike doctors or lawyers, clergy are denied any exemption.
 
“This law demands that Catholic priests violate their deeply held faith in order to obey the law,” said Assistant Attorney General Harmeet Dhillon, calling the law a violation of the First Amendment. The Catholic Church, for its part, has warned that any priest who complies will be automatically excommunicated, reinforcing the absolute nature of the confessional seal in Catholic doctrine.
 
While the law is presented as a measure to protect children, its specific targeting of clergy reveals a more troubling agenda. Other professions maintain their confidentiality rights. Only clergy are denied theirs. That double standard invites constitutional scrutiny and raises the question of whether the law was crafted not just for protection, but for punishment. And it destroys any semblance of either religious neutrality or general applicability in the process.
 
Proponents argue that the law is necessary. But even if the goal is admirable, the means are unlawful. No predator will confess if he knows it will lead to arrest. The practical result is a law that does nothing to prevent abuse and everything to trample religious rights.
 
Gov. Ferguson dismissed the federal investigation as political. Yet it is the state’s law that politicizes religion, forcing clergy to choose between faith and compliance. That’s not accountability – it’s coercion.
 
The law is set to take effect on July 27. Unless blocked in court, priests in Washington State will soon face an impossible choice: obey the law and betray their faith, or uphold their faith and face legal punishment. That’s a choice no free society should ever demand of its citizens.

​Georgia Dillane did not attend the pro-Palestinian sit-in at Barnard College in March. She wasn’t out in the crowd; she was in the school’s WKCR radio studio anchoring a broadcast. Yet weeks later, she found herself accused by Barnard of “disorderly conduct, disruptive behavior, failure to comply, unauthorized entry, threatening behavior, and theft, vandalism or damage to property.” All for doing her job as a journalist.
 
Her colleague, Celeste Gamble, was at the scene, but only as a credentialed student reporter. She left when told by police to evacuate. There is no reason to believe she was anything but professional in her role as an objective observer. Yet, like Dillane, Gamble received emails from Barnard’s CARES (Community Accountability, Response, and Emergency Services) office demanding she meet without legal counsel to “refute any suggestion” of wrongdoing. Neither student had been disruptive. Neither had committed any known infraction. Yet they were treated as suspects.
 
Dillane’s offense appears to be little more than journalism. Her real “crime” was that a man later arrested by immigration authorities could be heard in her audio report. That connection, however tenuous, was enough to get her flagged as a potential wrongdoer just weeks before graduation, which had temporarily been put in jeopardy.
 
This is not an isolated incident. As we’ve noted in our coverage of Tufts Ph.D. student Rumeysa Orturk, moral panic over campus protests is now being weaponized against students with the flimsiest of links to the turmoil. Orturk, too, was no ringleader – just a signatory to a student op-ed, sober and serious, that was critical of Israel. Orturk was arrested and nearly deported before a judge intervened.
 
The recent spike in antisemitism on college campuses is real, troubling, and must be countered and kept from happening again. Hate speech and threats of violence must always be taken seriously by college administrations. But the solution cannot be to launch witch hunts against students who write, report, or question. Colleges and universities are where the principle of free inquiry – so foundational to our democracy – is meant to be practiced.
 
If journalism is rebranded as “disruption,” and if signing an op-ed becomes a pretext for arrest, we risk sliding from law enforcement into the realm of viewpoint persecution. Institutions like Barnard should be defending their students’ right to report and speak freely, not joining in the chorus of overreaction.
 
Even though New York’s shield law provides strong protections for journalists, including an absolute privilege for confidential sources, it doesn’t cover unpaid student reporters. Still, courts in the Second Circuit have found that student journalists can claim a qualified First Amendment privilege if they gather news for public distribution. Undermining their independence betrays both press freedom and the core mission of higher education.
 
In this age of guilt by association, the pursuit of actual wrongdoers can give way to the harassment of innocent people, even those who (unlike the two student journalists) have opinions we detest. We should remember freedom means protecting dissenters we disagree with, and standing up for process even when we’re angry. Otherwise, we lose not only our cool, but our constitutional compass.

​Quick, fill in the blanks below.
 
There is no God but _______ and _________ is his messenger.
 
At a loss? Here is some Q&A guidance:
 
“Who Is Allah?” Answer: “Allah is the one God who created the heavens and the earth, who has no equal and is all powerful.”
 
And this:
 
“Who is Muhammad?” Answer: “Muhammad (Peace be upon him) is the last & final Messenger of God. God gave him the Noble Quran.”
 
The above comes from a lesson plan from a class in Chatham Middle School in New Jersey. This and other material prompted a lawsuit by Libby Hilsenrath on behalf of her minor son when he was exposed to these questions and prompts in a seventh-grade World Cultures and Geography class.
 
In addition, Hilsenrath’s son was exposed to videos alternating between quotations from the Quran and a series of questions and answers about Islam. The course included an animated cartoon explaining the “Five Pillars of Islam.”
 
Hilsenrath sued, claiming that her son’s right to free expression of religion under the First Amendment were violated by this outright proselytizing of Islam. The teachings amounted to a government establishment of religion. A federal district court disagreed. Now the U.S. Court of Appeals for the Third Circuit has just upheld the ruling of the lower court.
 
Protect The 1st agrees with the Third Circuit’s opinion. The reasons why are critical to making the distinction between government establishment of a religion and teaching about a religion.
 
The Chatham Middle School’s World Cultures and Geography class included units focused on six different regions of the world. Students not only studied the history of these regions, but also their religion(s).
 
As we’ve long noted, schools cannot properly teach American history without examining the motivations and beliefs of Christians, from the Puritans to the Great Awakening, the abolitionists and the civil rights movement. Similarly, in class Chatham students were taught about the basic tenets of Christianity and its missionary impulse when studying Latin America, about Hinduism and Buddhism in Asia, and about Islam when studying the Middle East.
 
The curriculum referred to “what Muslims believe” instead of what students should believe. It was a respectful deep dive into Islam that will help any of the non-Muslim students in the class who might later travel to a Muslim country to understand the beliefs and sensibilities of their hosts.
 
In recent decisions, the U.S. Supreme Court has looked back to history as a guide to what an actual establishment of religion – forbidden by the First Amendment – would look like. It would include government control over the doctrine and personnel of a religion. It might mandate attendance at worship and sanction those who did not. It might punish dissenters and restrict their political participation. It might provide support for the favored religion and give it a monopoly over certain civic functions.
 
The lesson plan of Chatham Middle School did not include any of these hallmarks of a religious establishment.
 
Just as it is wrong to use the Establishment Clause of the First Amendment to shut down the teaching of the role of churches in American history, it also should not be used to keep children ignorant about the role of world religions. There is literally no way to understand modern Saudi Arabia, Egypt, Turkey, or Indonesia without reference to their Islamic heritage. 
 
In many secular contexts, there is a growing impulse – one could call it theophobia – regarding any reference to religion, or inclusion of religious schools or organizations in public programs or venues, as an automatic constitutional violation. But this is not the law.
 
The Establishment Clause means what it says, but it does not require religion to be handled as if it were radioactive.
 
Parents do have a role in imparting religious beliefs. “The United States of America is not Sparta,” the Third Circuit declared, “where children were considered wards of the state. Parents are the first and foremost teachers of their children.” When a school board elected by parents decides to teach children about the world and its many beliefs, however, that is also the First Amendment in action.

​Elite universities have undeniably become academies of progressive ideology, in dire need of diversity of thought and opinion. They have also become bastions of racial discrimination, as the Supreme Court found in its 2023 opinion, Students for Fair Admissions v. Harvard, ruling that Harvard’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. With President Trump announcing on Friday that he will revoke Harvard’s tax-exempt status, a court might well decide that Harvard’s admissions and hiring policies, and its tolerance of antisemitism on campus, make it a legitimate target for tough action.
 
But the order to revoke Harvard’s tax-exempt status and the administration’s April 11th letter to Harvard setting conditions for continued federal funding raise other concerns that should trouble defenders of academic freedom, especially those who are conservatives.
 
The administration tied further federal funding to reforms to the school’s curriculum and culture. Whether or not Harvard needs reform, this plainly infringes on Harvard’s First Amendment rights, endeavoring to trade Harvard’s progressive “ideological capture” for a different kind of capture – outright government control. And if successful, subsequent efforts to revoke the school’s tax-exempt status will open the floodgates to future abuses of power that conservatives will live to regret.
 
This is the inherent danger of the administration’s desire to create a superhighway for federal control of academic freedom. In Harvard’s complaint filed in federal court in Massachusetts, the university quoted the Supreme Court’s Moody v. Netchoice (2024) decision that “The First Amendment does not permit the government to ‘interfere with private actors’ speech to advance its own vision of ideological balance.’”
 
Harvard didn’t have to look far for that precedent. The U.S. Supreme Court proclaimed it in 2024, when it found that government cannot suppress disfavored speech by threat of sanctions. Based on the plain text of the government’s letter, that seems exactly the administration’s aim here. 
 
New questions will arise now that President Trump is ordering the IRS to revoke Harvard’s tax-exempt status. As The Wall Street Journal pointed out in a recent editorial, some precedent exists that could support such an action. It is true that in 1983 the Supreme Court upheld the IRS’ revocation of Bob Jones University’s tax-exempt status based on its overtly racially discriminatory practices. The Court at that time reasoned that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.” But many critics of Bob Jones were still concerned about such policies being made by the IRS on the basis of no law.
 
Beyond the legal and constitutional questions, there are more practical reasons why the administration’s actions are dangerous. Remember when the IRS targeted conservative groups for enhanced scrutiny, seemingly based on ideology? IRS official Lois Lerner catalyzed a furor among the right when emails revealed her antipathy towards conservative groups she targeted for investigation. Conservatives should also remember the many times the government has attempted to overrule traditional religious beliefs, from the FBI’s targeting of “radical, traditional Catholics,” to management of the conscience rights of religiously oriented healthcare clinics.
 
Should this administration prevail in its effort to subjugate Harvard’s academic freedoms in accordance with its own ideological preferences, a precedent will be set for future administrations to control speech in other directions. Expanded powers of the presidency don’t just go away when a president leaves. They stay with the office, accumulating over time.
 
There are any number of less constitutionally dubious means of working with colleges and universities to introduce more heterodoxy into academic circles. And Harvard, for your part, you ought to respond to this moment by hiring at least a few conservatives – intellectuals who represent a large plurality of this country and, recently, a majority of its voters.

​A federal judge in Washington, D.C., has issued an injunction that bars the Trump administration from enforcing an executive order against the law firm Perkins Coie. The order had forbidden the more than 1,200 Perkins Coie lawyers from entering federal buildings or from holding national security clearances – crippling restrictions for many of these lawyers, their clients, and their ongoing cases.

The reason for the president’s anger at this firm is clear. A Perkins Coie attorney – who has long since left the law firm – was involved in the pass-through for Clinton campaign funds in 2016 connected to the Steele dossier, since discredited by the Justice Department Inspector General.

But the sweeping action against the firm’s many lawyers and their clients is seen by most of the legal community as overreach.

Conservative legal writer Andrew McCarthy wrote in National Review that this order is “a brazenly unconstitutional attempt to put the law firm out of business – or, just as likely, to extort tens of millions of dollars in legal services from it, as the president has succeeded in doing with several similarly targeted law firms, which decided to settle rather than continue to fight while hemorrhaging clients and employees.”

Now federal Judge Beryl Howell’s 102-page opinion provides a stinging rebuke to the administration. Judge Howell’s opinion begins on a puckish note, quoting Shakespeare’s Henry VI, “the first thing we do, let’s kill all the lawyers.” Judge Howell found:

“The Supreme Court has long made clear that ‘no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion’ … Simply put, government officials ‘cannot … use the power of the State to punish or suppress disfavored expression.’

“That, however, is exactly what is happening here.”

(Hat tip for the above to Eugene Volokh, PT1st Senior Legal Advisor).

In finding the executive order unconstitutional, Judge Howell quoted the Supreme Court’s opinion in National Rifle Association v. Vullo, in which the Court unanimously stopped an attempt by a progressive political appointee in New York State to stifle the speech rights of the NRA.
​
McCarthy and other conservative legal observers point out that the same neutral principles that protect left-leaning law firms also protect the NRA or the many conservative publications targeted with advertising blacklists by a secret State Department program. Volokh expects this case to be promptly appealed to the D.C. Court of Appeals. It will be interesting to see if the administration, in fact, does file an appeal.

​The Oak Flat sacred site in the Tonto National Forest in Arizona has undergone a Perils of Pauline ordeal in federal courts, rescued from ruin only to be tied to the tracks again before an oncoming train.
 
This land for centuries has been the centerpiece of Apache religion and the Western Apache people’s relationship with the Creator. It is now slated to be transferred to a partially Chinese-owned mining company that plans to dig a copper mine there, mutilating a site as holy to the Apache as the Vatican is to Catholics or the Wailing Wall is to Jews. If the project proceeds, all that will be left of the Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
The Apache’s appeal has been repeatedly relisted for possible certiorari, or an oral argument, before the Supreme Court. Not content to wait, the U.S. government has announced its intention to jump ahead of the Court and transfer Oak Flat to the mining company, circumventing the judicial process.
 
At 9:30 a.m. on Wednesday, Luke Goodrich of the Becket Fund for Religious Liberty will present an emergency motion before Judge Steven P. Logan in federal district court in Phoenix asking him to block the transfer while the Supreme Court hears the case.
 
In a dissent from the Ninth Circuit opinion now being appealed, Judge Marsha B. Berzon declared that the Religious Freedom Restoration Act (RFRA) should be sufficient to protect Oak Flat. She wrote that “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources.” She called the current status of the case “an illogical interpretation of RFRA” and “incoherent.”
 
This case is too important to be short-circuited or ignored. Respect for RFRA is vital to people of all faiths, which is one reason why Christian, Jewish, and other groups have joined in petitioning the courts to save Oak Flat.
 
On Sunday, Apache tribal members began an 80-mile run from Oak Flat that will end in Phoenix just before the hearing. We may not be able to join them on the run, but surely we can join them in prayer.

​With Gov. Greg Abbott’s signature on Saturday, Texas became the 16th state to embrace universal school choice.

“Gone are the days that families are limited to only the school assigned by government,” Gov. Abbott said. “The day has arrived that empowers parents to choose the school that’s best for their child.”

We only would add that thanks to the leadership of Gov. Abbott, universal school choice gives parents the ability to fully express the First Amendment by carrying their values across the generations.

That freedom will include the ability of parents to choose schools with an emphasis on STEM, on the arts, or religious-based schools.

Texas is allocating an initial budget of $1 billion to provide more than $10,000 per year for each child to pay for private school tuition. Children with disabilities will receive an additional $30,000 for extra care. Parents who homeschool their children can receive up to $2,000 a year for materials and resources. Parents will be able to access these funds though education savings accounts.

Only a few years ago, no state had universal school choice, making choice a pipe dream for most American families. With mega-states like Florida and Texas – and large states from Arizona to Tennessee and North Carolina – now embracing school choice, it is clear that school choice has moved from the periphery to the center of American life.

Where will this movement go from here? We see two fruitful avenues for further progress.

The first are states controlled by Democrats. There is no mistaking that the school choice debate has been a red-blue issue, stoutly rejected by Democratic leaders from Sacramento to Springfield. We are hopeful that as universal school choice states post positive educational results, blue-state governors will begin to rethink their reflexive opposition. Gov. Josh Shapiro of Pennsylvania has been notably open to considering some form of school choice for the Keystone State.

The second avenue for progress is for the House to pass the Educational Choice for Children Act, and to ensure that it remains in the reconciliation package. This bill would create a substantial resource, through tax credits, for the private sector to support private school options with donations.
​
With a third of the states now embracing school choice, it is time to consider the unfolding of this movement as a matter of national policy.

​Protect The 1st has long advocated school choice, from secular schools that concentrate on STEM and the arts, to religiously based schools, as an important way for parents to express their First Amendment rights across generations.

Michael J. Broyde, Emory University law professor, writes in The Wall Street Journal that the Supreme Court has held in precedents ranging from Espinoza v. Montana Department of Education (2020) to Carson v. Makin (2022) that if a state funds private education, it cannot exclude religious schools.

Broyde wrote:

“Critics will worry that directly funding religious schools compromises the separation of church and state. But as the Supreme Court has clarified, public money can follow the student – even into religious settings – as long as the funding program is neutral with respect to religion, and the choice of school is made independently by parents.”
​
The inclusion of religious schools, like Oklahoma’s St. Isidore Virtual Catholic School, is an important way to promote a thriving, pluralistic, First Amendment society.

The U.S. Supreme Court heard two hours of oral argument Wednesday in a case that laid bare ideological fault lines in the Court concerning the tension between the First Amendment’s two clauses on religion, one guaranteeing its free exercise, the other forbidding any establishment of religion. While the Court has recently leaned in the direction of religious freedom, the recusal of Justice Amy Coney Barrett added a note of drama, raising the real possibility of a 4-4 split that would leave intact the Oklahoma Supreme Court’s decision blocking the school.

The case began when the Archdiocese of Oklahoma City and the Diocese of Tulsa created St. Isidore of Seville, a virtual Catholic school intended to serve all families, including those in rural and underserved areas. The Oklahoma Statewide Charter School Board approved St. Isidore’s application. But state Attorney General Gentner Drummond took the board to court, claiming it had violated both state and federal law by approving a religious school as part of the charter system. The Oklahoma Supreme Court agreed with the attorney general, ruling that charter schools are public entities and thus must be secular.

We’ve made the case that this ruling is “eminently overturnable,” resting on a legal framework polluted by Blaine Amendments – a relic of 19th-century anti-Catholic bigotry. As we explained when the Court first agreed to hear this case, the Oklahoma law’s exclusion of religious institutions from an otherwise open charter school system violates the Free Exercise Clause of the First Amendment.

Justice Brett Kavanaugh seemed to see it the same way.
 
“Those are some of the most important cases we've had,” he said, referencing two precedents, Espinoza and Carson, “saying you can't treat religious people and religious institutions and religious speech as second class in the United States.” He called Oklahoma’s policy “rank discrimination against religion,” noting that religious schools were not asking for special treatment, just the right to compete on equal footing.

Justice Samuel Alito took that concern a step further. He accused the Oklahoma attorney general’s argument of reflecting “hostility toward particular religions,” particularly Islam. Referring to Drummond’s statements warning that approval of St. Isidore would compel approval of schools run by “reprehensible” sects, Alito said those arguments “reek of hostility” and reflect an “unsavory discriminatory history” in the state’s constitutional framework.

One question that continued to arise in the oral argument centered on whether St. Isidore, as a charter school, is a state actor. If so, then its religious character would trigger establishment clause concerns. But if St. Isidore is a private actor merely contracting with the state, then exclusion based on religion becomes unconstitutional discrimination. “Casting the cloak of state action too broadly risks intruding on individual liberty,” Michael McGinley, attorney for St. Isidore, told the Court.
 
Justice Neil Gorsuch seemed to agree, warning that a ruling against the school could incentivize states to exert more control over charter schools, curbing the innovation those schools were meant to foster. Gorsuch also asked a series of questions to probe whether an educational institution such as St. Isidore could be considered a private organization for the purposes of federal law, but a public institution for the purposes of state law. This probing gives a sense of how Justice Gorsuch, and perhaps the Court, might parse the principles of this case.

The more liberal justices pushed back forcefully. Justice Elena Kagan warned of a “floodgate” effect that could compel states to fund every kind of religious school, including those with doctrines “super different” from mainstream religious or secular values. Justice Sonia Sotomayor bluntly declared: “What you’re saying is the Free Exercise Clause trumps the Establishment Clause.” Justice Ketanji Brown Jackson argued that St. Isidore was asking for a benefit not granted to anyone else – the right to operate a religious public school – although Oklahoma had every right to set up a secular charter system.
 
Chief Justice John Roberts’ few comments suggested that he is weighing the issue with caution. He noted that unlike Trinity Lutheran, Espinoza, or Carson, this case involves “much more comprehensive involvement” by the state in the charter school program. Chief Justice Robert’s terse demeanor may be a clear signal he will be the deciding vote.

Meanwhile, Gregory Garre, representing the state, warned of “uncertainty, confusion, and disruption” if the Court rules in favor of St. Isidore, arguing it would upend the laws of 47 states and the federal charter school program, all of which bar religious charter schools. But that argument overlooks what the First Amendment demands – neutrality, not hostility, toward religion.

General Drummond’s likening of the inclusion of a Catholic school in the state’s charter program to a private takeover of the operations of the Oklahoma Highway Patrol, to create a Catholic Highway Patrol, is as unserious as it is inapt. No student would be forced to attend St. Isidore. Families would choose the school, and the state’s funds would follow the child. That’s no different in substance than school voucher programs the Court has repeatedly upheld. The state didn’t design St. Isidore, doesn’t run it, and shouldn’t be allowed to exclude it for being religious.

Protect The 1st hopes the Court recognizes that this case is not about religious favoritism. It is about ending religious exclusion. Once Oklahoma opens the door to private educational providers, it cannot slam that door shut on faith-based institutions. St. Isidore deserves the same opportunity to serve Oklahoma families as any other charter school.

​Sarah Palin’s long-running defamation suit against The New York Times came to an end last week, with a federal jury again ruling against her claims. The jury found, after just two hours of deliberation, that The New York Times had not defamed the former Alaska governor and 2008 vice presidential candidate by mistakenly linking her political action committee’s rhetoric to the mass shooting in Arizona in 2011 that killed six people and severely injured then-Rep. Gabby Giffords.
 
Of course, the media landscape today is fragmented and biased in ways that can frustrate fair public discourse. Outlets across the spectrum cater to their audiences’ ideological appetites, much as newspapers did in the early Republic. This partisanship is far from ideal, but the First Amendment still steadfastly protects it – even when bias tilts against conservatives.
 
In Palin’s case, The New York Times made an undeniable error when it published a 2017 editorial implying a link between the Arizona shooting and a map distributed by Palin’s PAC that contained congressional districts with stylized crosshairs. The mentally ill shooter had, in fact, a long-standing grudge against the congresswoman that predated the map. But mistakes, even careless ones, are not the same as “actual malice,” the standard set in New York Times v. Sullivan for public figures like Palin to prevail in libel suits.
 
The Times moved quickly, issuing a public correction less than 14 hours after publication and clarifying that there was no established connection between Palin’s map and the shooting. James Bennet, then-editorial page editor, tearfully apologized to Palin in court, acknowledging the mistake and his efforts to fix it. These actions matter. Corrections are not only an ethical obligation for journalists; they help defray the risk of defamation liability by showing good faith and a commitment to accuracy.
 
If Palin had prevailed in court, that ruling would have made corrections meaningless. Rather than encouraging media outlets to promptly and transparently acknowledge their errors, a Palin victory would have discouraged self-correction and made the political climate far more hostile to the open debate the First Amendment is designed to protect.
 
There is legitimate debate to be had about whether the Sullivan standard needs adjustment. There is clearly room in for more journalistic accountability in cases in which an untruth leads to the loss of an election or the termination of a contract. Courts and commentators alike have argued whether the line between public and private figures has blurred too much, making it unreasonably difficult for individuals to defend their reputations. Some argue that the precedent could use fine-tuning to address egregious falsehoods that are not caught by today’s high bar. But as this case shows, even high-profile plaintiffs can win under the current doctrine when facts warrant it – as Dominion did against Fox News.
 
Conservatives are right to be concerned about media bias. It is real and often glaring. But the answer cannot be to dismantle the constitutional protections that allow ideas – good, bad, and ugly – to compete in the marketplace. As we have written before, the solution lies not in empowering judges and juries to police editorial decisions, but in cultivating a discerning public that reads broadly and thinks critically.
 
The First Amendment guarantees a free press, not a fair one. Palin’s loss, while surely disappointing to her and her supporters, is a victory for that freedom, and for the principle that honest mistakes must not become fatal mistakes for a free and independent press.

​George Leef on National Review criticizes a federal court in New Hampshire for upholding restrictions on a protest over transgender players at a high school soccer match. He warned the court was accepting the dangerous notion that “speech is violence,” suggesting that this ruling is a broad erosion of First Amendment protections.
 
The case involved parents wearing pink wristbands marked “XX” to protest a transgender athlete’s participation in that game. NR sees this as censorship of symbolic speech. We disagree – and the reasons why are instructive. While we share NR’s vigilance in protecting free expression, not every speech regulation is an assault on liberty. A school official has the right to manage a limited public forum like a school-sponsored event, where viewpoint-neutral rules serve to safeguard students’ rights without silencing legitimate public debate.
 
As the court carefully explained, the soccer field during a school event is just such a limited public forum. In such spaces, schools may impose reasonable time, place, and manner restrictions without engaging in viewpoint discrimination​.
 
The key fact in this case is that the pink wristbands were not an abstract statement of policy, but a comment on a specific student playing in that game. The judge found that the wristband display was not a broad policy statement but a targeted message aimed at that student. As he explained: “Context is everything,” and school officials could reasonably interpret the message as “demeaning, harassing, and psychologically injurious” toward that transgender student​.
 
Critically, the court did not suppress the parents’ views on transgender participation. It enforced neutral rules that barred targeting any individual student at school events. Schools, the judge emphasized, have a “special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
 
This is in keeping with Tinker v. Des Moines (1969), a Vietnam-era case in which the Supreme Court rightly protected silent protest but also recognized that schools may intervene when speech substantially invades the rights of other students. Here, the court relied on concrete evidence, not ideological disagreement, to uphold a narrowly tailored restriction.
 
Free speech advocates must be wary of censorship dressed up as protection. But not every regulation is censorship. Sometimes it reflects the school’s duty to ensure that all students can participate safely and fully in public life. In defending free speech, we must also defend the simple, sensible rules that preserve limited public fora.
 
The First Amendment’s promise endures because it balances robust freedom with careful stewardship. Protecting it requires vigilance – and precision – in telling the difference.

​The Department of Justice has rescinded its policy shielding journalists from being compelled to produce records or testify in federal leak investigations. Attorney General Pam Bondi issued a memo that the move is needed for “safeguarding classified, privileged, and other sensitive information.” The memo also reportedly discusses the danger of leaks that “undermine” the president’s agenda.
 
This is a step in the wrong direction. DOJ’s former policy was a laudable and necessary bulwark against government meddling in the collection and dissemination of free information. It is an own-goal for conservatives feeling wronged by lawfare and official censorship. The confidence of sources to expose secret transgressions made it easier for conservative journalists to reveal the IRS campaign to harass conservative non-profits during the Obama administration, for The New York Post’s to stand by its brave and lonely investigation of Hunter Biden’s laptop, for the independent reporting of Catherine Herridge, and for Matt Taibbi’s exposure of the extent of social media censorship.
 
In recent years, we’ve seen federal intrusion into the records of the AP, CNN, The Washington Post, The New York Times, and even morning raids to confiscate the phones of activist journalists. For decades, journalists have been held in contempt and jailed for refusing to reveal their confidential news sources.
 
As a result, almost every state in the country has a “press shield” law that protects journalists’ sources and notes, with reasonable exceptions. But the federal government has no such law.
 
Reporters Committee for Freedom of the Press president Bruce Brown said in response to the decision: “Some of the most consequential reporting in U.S. history – from Watergate to warrantless wiretapping after 9/11 – was and continues to be made possible because reporters have been able to protect the identities of confidential sources and uncover and report stories that matter to people across the political spectrum. Strong protections for journalists serve the American public by safeguarding the free flow of information.”
 
That’s why there has been strong bipartisan support in the House of Representatives for the Protect Reporters from Exploitive State Spying (PRESS) Act, passing it twice. The PRESS Act would prohibit federal authorities from spying on journalists through collection of their phone and email records while imposing strict limitations on when the government can require a reporter to give up their sources. It reasonably grants exceptions for emergencies.
 
In the Senate, the PRESS Act has strong bipartisan support, including from Senators Mike Lee (R-UT) and Lindsey Graham (R-SC), as well as Democrats Sen. Ron Wyden (R-OR) and Sen. Dick Durbin (D-IL). But it has yet to make it out of committee.
 
Congress must act now. Enshrining protections for journalists is a logical policy fix designed to protect newsgathering, which is our primary means of directing the disinfecting rays of sunlight towards government corruption and malfeasance. Doing so would be consistent with the aims of the founders, who took great pains to ensure the First Amendment had a place of primacy in the Bill of Rights. And it would protect against increasing constitutionally illiterate, illegal acts by government officials against reporters. 
 
General Bondi promises that warrants should “limit the scope of intrusion into potentially protected materials or newsgathering activities.” That is a subjective and potentially politicized assessment. We need a brightline rule. Laws to protect journalists’ notes and sources have worked well across America’s red and blue states. The PRESS Act will work just as well in Washington, D.C.

​In a recent op-ed, Secretary of State Marco Rubio promises to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” It’s a laudable objective and one for which Protect The 1st is immensely grateful. But Secretary Rubio and his colleagues should take into account the dangers that arise from the tendency to explore new ways to punish the speech of political opponents and media critics.   
 
Rubio’s choice of venue, The Federalist, was a shrewd one. This publication was one of ten “riskiest online news outlets” identified by the Global Disinformation Index, a British organization funded in part by the State Department’s Global Engagement Center (GEC). The intent was to discourage companies from advertising in these publications and platforms. Rubio announced the closure of the GEC in his editorial.
 
GEC’s efforts, as we’ve written, tried to kill conservative publications. It also constituted a “black box” that allowed federal agencies to filter content moderation requests to social media platforms under the guise of combating “disinformation.” We have no problem with official efforts to identify the propaganda of foreign terrorists and hostile regimes so long as officials are willing to make their case in public. But GEC was un-American, both in conception and in operation. It would be no less concerning if the government was policing liberal outlets like Mother Jones or The Nation.

So, good riddance to the GEC. But just because Secretary Rubio shut down one illiberal outfit doesn’t get the administration off the hook for its own efforts to coerce news outlets and organizations into toeing the official line.
 
This was brought to light in the controversy over 60 Minutes, facing a lawsuit from President Trump over alleged “voter interference” owing to its allegedly duplicitous editing of an interview with candidate Kamala Harris. CBS, the network which airs the show, is owned by Paramount Global – a company currently in merger negotiations with Skydance Media. Paramount’s controlling shareholder, Shari Redstone, has urged a settlement with Trump, no doubt to pave the way for eventual FTC approval of the deal. In turn, Scott Pelley of 60 Minutes last night addressed the resignation of executive producer Bill Owens and admitted on his show that it is losing some of its journalistic discretion. By holding a lawsuit over the heads of a major media conglomerate, this administration has successfully exerted control over a formerly independent, and historically vaunted, news program. One may fairly judge CBS to be biased, but it is not the business of government to police speech, biases included.
 
Similarly, the Federal Communications Commission is taking jawboning to its extremes, threatening Comcast (owner of MSNBC) and Warner Bros. Discovery over coverage of the deportation of Abrego Garcia to El Salvador.    
 
The administration would do well to remember that the First Amendment protects the people from government action – not the other way around. Conservatives would do well to continue to dismantle the censorship apparatus, not pioneer new forms that could, once again, be used to throttle conservative speech by the next administration. While we applaud Secretary Rubio for ridding us of the GEC and all its poisoned fruit, everyone who takes the First Amendment seriously should be willing to call out the current administration when it engages in the same sort of harassment it opposes.

​It was reading time at the U.S. Supreme Court today, though the oral argument in Mahmoud v. Taylor did not end with milk, cookies, and a nap. It did indicate, however, a likely victory for the plaintiffs.

Much of today’s oral argument centered around the storybooks included in the pre-K to 6th grade curriculum in Montgomery County schools. One such storybook, Prince & Knight, factored into the discussion.

Here’s a summary of that book written for children ages 4 to 8: Once upon a time, there was a prince who was urged by his royal parents to visit neighboring kingdoms to find a suitable bride. But the prince did not find the woman he loved. While on his journey, the prince was informed that a dragon was attacking his kingdom. He joined forces with a dashing knight, who used his shield to blind the monster. This allowed the prince to successfully ensnare the dragon. When the prince tripped, the knight came to his rescue and caught him in his arms. That’s when the prince realized that he was, in fact, in love. And soon prince and knight were warmly received into the kingdom, which joyfully celebrated their royal wedding.

Another such book, Love Violet, tells the story of a girl who harbors a secret crush for another girl in her class.

In the eyes of many, Prince & Knight and Love Violet spin tales that help children to grow up with respect and acceptance. In the eyes of families that are adherents of great world religions – from Roman Catholicism to Christian evangelicalism, to Islam and Orthodox Judaism – these stories indoctrinate children into celebrating relationships that their religions reject as sinful. Forcing this instruction, therefore, is a violation of the First Amendment rights of the parents’ free exercise of religion.

No one in this case is seeking suppression of these books and teachings. Religious parents of Montgomery County school children are merely seeking the right to opt out their children from the books and its related curriculum. The Montgomery County school board at first allowed such opt-outs, then denied them, claiming that allowing them would be impractical to manage. The Fourth Circuit Court of Appeals upheld the school board’s decision, finding that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”

In today’s oral argument, Justice Samuel Alito pushed back on that notion. Given that these books are read to children as young as age four, he said many will lack the faculties to dispute or disagree with what they are being told.

“I don’t think anybody can read that and say, ‘Well, this is just telling children that there are occasions when men marry other men,” said Justice Alito. “It has a clear moral message, and it may be a good message. It’s just a message that a lot of religious people disagree with.”

Justice Elena Kagan acknowledged that what some Montgomery County principals had flagged – regardless of gender, the storybooks’ focus on romantic relationships was a questionable choice for children as young as four. “I too, was struck by these young kids picture books and, on matters concerning sexuality, I suspect there are a lot of non-religious parents who weren’t all that thrilled about this.”

But Justice Kagan stuck to the notion that if opt-outs are allowed in this instance, they will have to be allowed for a host of other objections, perhaps even to the teaching of evolution in biology class. Justice Kagan said: “Once we articulate a rule like that, it would be like opt-outs for everyone.”

Justice Ketanji Brown Jackson’s questions centered around the point that an opt-out rule would “constitutionalize” local decisions on curricula best left to the communities. “Maybe in one community, one set of values, these books are fine, but in another community with a different set of values, they’re not,” she said.

Justice Alito returned to the point that the plaintiffs were not asking that the books be removed. “What’s the big deal about allowing them to opt out?” he asked. “I am not understanding why it’s not feasible,” said Justice Brett Kavanaugh.

Overall, the tone and tenor of today’s oral argument indicates a solid majority will come down on the side of observing the right of religious parents to opt-out their children.

Two minutes into this two-and-a-half hour-long hearing, Eric Baxter of the Becket Fund for Religious Liberty, which represents the parents, drew on Protect The 1st’s own amicus brief for his presentation. In that brief, Protect The 1st declared: “Properly understood, the First Amendment forbids the government from imposing such coercive choices on parents as a precondition to participating in a public benefit, including public education.”
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Though we rarely make predictions about how the Court will decide, we believe that will be the likely stance the Court majority will take.